Trustees, etc., of Town of Brookhaven v. Smith

• Decision Date: 12 March 1907
• Parties: TRUSTEES, ETC., OF TOWN OF BROOKHAVEN et al. v. SMITH et al.
• Court: New York Court of Appeals Court of Appeals

188 N.Y. 74

80 N.E. 665

TRUSTEES, ETC., OF TOWN OF BROOKHAVEN et al.

v.SMITH et al.

Court of Appeals of New York.

March 12, 1907.

Appeal from Supreme Court, Appellate Division, Second, Department.

Action by the trustees of the freeholders and commonalty of the town of Brookhaven against Wilson R. Smith and others. Judgment for plaintiffs (90 N. Y. Supp. 646), and defendants appeal. Reversed and dismissed.

Hiscock, Vann, and Werner, JJ., dissenting.Willard N. Baylis and Frederic R. Coudert, for appellants.

Timothy M. Griffing, for respondents.

GRAY, J.

This action is in trespass, for building a pier upon certain lands under water, in the Great South Bay; of which the plaintiff, the town of Brookhaven, is seised in fee, under crown grants made by royal governors in the years 1666, 1686 and 1693. The appellant Smith is the owner of a piece of upland, bounded on high-water mark, by title derived under a crown grant made to William Nicoll in 1697. From this upland a pier, built upon piles, extended for about 150 feet into and over the waters of the bay; which was owned and used by Smith and the other defendants for their greater convenience and facility in entering and in leaving their pleasure boats. Post, who is joined with the town as a party plaintiff, is its lessee. I understand that the plaintiffs conceded that the dock, or pier, was suitable enough for the purpose, and regarded merely as a structure, unobjectionable, and that their contention is that without their consent the defendants could not erect and maintain it. The defendants claim that, in erecting the pier, they have but lawfully exercised such rights as appertained to their ownership of the upland, and as were necessary, in order to gain access to navigable waters. The question has been considered and decided below in the light of the rule of the common law of England; as the same was at the time of the grants and as it construed the rights of a riparian owner. It was held that these grants, having been confirmed by the Constitution of this state, constituted contracts, the obligations of which the state cannot impair, and that therefore they are to be protected to the extent that they would have been, had ‘the Sovereign of Great Britian continued the owner of the soil.’ In this view the riparian owner is accorded no right, in the absence of a license therefor, to build anything below highwater mark and ‘has no higher rights than those of the general public.’ It is contended upon the authorities, and with reason, that so absolute was the character of the crown proprietorship, if the owner of lands in England, upon the tide water of the sea, or of navigable rivers, constructed a wharf or a dock beyond high-water mark, his structure, if obstructing the public right of navigation, or the jus publicum, could be abated as a nuisance; or, if a mere intrusion upon the jus privatum of the sovereign, as a purpresture, it was equally subject to removal at the pleasure of the crown. See Gould on Waters, § 167; Hale's De Portibus Maris, 85; Atty. Gen'l v. Richards, 2 Anstr. 603; Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L. Ed. 331. It is insisted that this rigid commonlaw doctrine, upon the subject of a riparian owner's rights, should control our present decision; notwithstanding that this court has in several instances expressed, and quite deliberately, a rule of interpretation, which gives a practical value or utility to the riparian owner's conceded right of access to the navigable part of the body of water in front of his upland. I cannot agree that, in construing these grants of lands under the waters of the bay, we are bound to hold with the doctrine of the common law of England, as to the exclusive nature of the grantee's possession, and as to his right to restrict the enjoyment of the riparian owner's right of access. The evidence of the common law, so far as it has not been declared in English statutes, we find in decisions of English courts rendered in existing controversies, and those decisions will be given their due effect here, when the law has not been changed by our statutes; unless new conditions, or a different public policy, demand that the rule contended for be modified by our courts in its application. Different political and geographical conditions may justify modifications, and whether common-law rules will be followed strictly by our courts will, necessarily, where no vested rights are actually concerned, depend upon the extent to which they are reasonable, and in accord with our public policy and sentiment. In not applying, in all its strictness, the common-law doctrine, as declared by the English courts, this court has only interpreted the rule in a juster and more equitable sense, and has affected no vested rights. That the town of Brookhaven, under its grants, acquired the title to the particular lands under water of the bay was settled by the decision in its case against Strong, 60 N. Y. 56; but it took and held the thing granted in its corporate political capacity, and as the representative of the crown, or of the colonial government, to be administered for the public good. De Lancey v. Piepgras, 138 N. Y. 26, 33 N. E. 822. Upon the organization of the state government, it continued to hold the soil of the bay in that capacity and representatively for the benefit of the members of the community. Whatever its rights acquired by the grant, they were and are, nevertheless, subject to the public rights of navigation and to rights of access of riparian owners. These rights have ever existed and, with respect to the latter, their nature and extent, when brought into question in this state, were not necessarily to be measured by English standards. The proprietary rights of the town were, and they must continue to be, subject to what, under the circumstances, is decided to be a reasonable exercise by the riparian owner of his right of access to the navigable waters of the bay. The argument that the measure of right of the riparian owner to the use of the foreshore, or land below high-water mark, for purposes of access to the bay, must be ascertained by reference to what was the rule at common law at the time of the grants, in my opinion, is unsound. The adoption by the people of this state of such parts of the common law as were in force on the 20th day of April, 1777, does not compel us to incorporate into our system of jurisprudence principles, which are inapplicable to our circumstances, and which are inconsistent with our notions of what a just consideration of those circumstances demands. The common law of England, upon the subject of the rights of riparian owners, has but an imperfect application to the situation in a state like this, with its numerous large navigable bodies of waters, in bays, rivers and inland lakes. See Browne v. Scofield, 8 Barb. (N. Y.) 239;People ex rel. Loomis v. Canal Appraisers, 33 N. Y. 461. To borrow the language of Judge Bronson, in his opinion in Starr v. Child, 20 Wend. (N. Y.) 149: ‘No doctrine is better settled than that such portions of the law of England as are not adapted to our condition, form no part of the law of this state.’ Such as were inconsistent with the spirit of our institutions, or had special reference to the physical conditions of a country widely differing from our own, never became a part of our law, upon the organization of this state. Lowber v. Wells, 13 How. Prac. (N. Y.) 456; People ex rel. Loomis v. Canal Appraisers, supra. We have but to consider the position of Great Britain, as an island, with short rivers, navigable only as far as the tide flows and ebbs, and a reason for the rigidity of the rule early asserted as to the extent of the rights attaching to riparian ownership may appear, in the apprehension of the ‘straightening of the port by building too far into the water.’ (From Hale's De Portibus Maris.)

Our position is different, physically and governmentally.

The jus privatum of the crown, by which the English King was deemed to own the soil of the sea and of the navigable rivers in his own right, rather than as a sovereign holding it in trust for his people, however applicable to the conditions in Great Britain, were totally inapplicable to the situation of the colonists of this country. In Gould on Waters, the author remarks, as to this, that ‘there is no evidence that the jus privatum * * * was ever asserted in the colony as the right of the crown, or that it has until recently been claimed by the states; but there is, on the contrary, in my opinion, the strongest evidence that this right has been abandoned to the proprietors of the land from the first settlement of the province and exercised by them to the present day, so as to have become a common right and thus the common law.’ (3d Ed.) § 32. I may observe, in passing, that in England the common-law rule, which left the riparian owner without any remedy when his right of access was destroyed by public works, has been modified within recent years. See Buccleugh v. Metrop. B'd of Works, L. R. [5 H. L.] 418. It is a matter of general observation, of which judicial notice may wisely be taken, that riparian owners everywhere upon the numerous navigable bodies of waters within the territorial limits of this state have made their easement, or right of access, practical and available by the construction of docks, piers, or wharfs, and have done so without interference by the state, where superior public rights have not been obstructed. These interests must be very large, and if we shall hold with the English common-law doctrine, that they are purprestures, or unlawful encroachments upon the proprietary rights of the state, as would follow, if we affirm this judgment, and that they are removable at pleasure, it would result in causing a very grave loss. Such a decision would be to ignore what has been believed to be a common right, within numerous adjudications of our courts.

In the...